Mould v Harvey

[2014] NZHC 2646

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-236 [2014] NZHC 2646

IN THE MATTER

of the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of PHILLIP ROY HARVEY

BETWEEN

JEREMY ALICK MOULD, CARLY JEAN MOULD & OLIVIA JEAN MOULD

Judgment Creditors

AND

PHILLIP ROY HARVEY Judgment Debtor

Hearing:	28 October 2014
Appearances:	Mr T Burtenshaw for Judgment Creditors Mr P R Harvey in person
Judgment:	28 October 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

MOULD & ANOR  v HARVEY [2014] NZHC 2646 [28 October 2014]

[1]      The judgment debtor in this case has filed a notice of intention to oppose the application for an adjudication order.   Essentially the judgment debtor attacks the propriety of the costs order which Justice Brown made and which is set out in the form of judgment that was sealed 9 December 2013.  That judgment fixed the costs in certain estate proceedings at $31,889.87.  Mr Harvey has asserted since the order was made that the plaintiff did not act with “clean hands” in the case in that on 17

August 2012 he assaulted the other judgment debtor, Ms Raewyn Mitchell.

[2]      It was further stated in the notice of intention to oppose that an application had been made to the Court of Appeal to have the case reheard on the grounds that Justice Brown  “may  have  overlooked”  the  requirement  for  clean  hands  in  the occurrence of the assault when giving his judgment on 9 December 2013.

[3]      Mr Harvey told me candidly that the application which he had made to the Court  of  Appeal  had  been  dismissed  or  declined.    It  may  be  that  in  fact  the application took the form of a letter that Mr Harvey wrote to the Court of Appeal. That is the contention of counsel for the judgment debtor in any event, the judgment stands and the attempt to have it set aside proved unsuccessful.

[4]      Mr Harvey told me today that he opposed the making of an order for adjudication and that he invoked the Court’s discretion.  He made reference to s 37 of the Insolvency Act 2006.  However I think it is fair to say that while Mr Harvey has invoked the broad grounds of the Court exercising its discretion to decline to adjudicate, the matter in the end comes down to the question of the justification for the High Court making the order which has given rise to the debt which underlies the application for adjudication.

[5]      Normally the Courts do not determine opposed bankruptcy matters at list stage.  Some however are capable of resolution at that point because the issues are simple and straightforward and it would not be in the interests of the parties for the matter to be adjourned for a fixture.  This case is of that kind.

[6]      The case turns upon the question of whether it is now open to Mr Harvey to call into question the debt upon which the application for order adjudicating him bankrupt is based.  In my view it is clearly not open to him to take that point.  The judgment on the basis of which the judgment creditor proceeds has to be regarded by this Court as binding and extant.  It is not open to this Court when considering an application for an adjudication order to make its own enquiries into the question of whether the Judge who made the original order ought to have done so.  If, of course, the judgment debtor is able to persuade an appellate Court to come to such a decision that  is  a  separate  matter  altogether  but  that  has  not  happened  in  this  case  and therefore as I say the judgment must be given effect to.   It follows from that that there  are  no  grounds  upon  which  the  Court  can  decline to  make the  order  for adjudication for reasons that the original order ought not to have been made.  There are no other grounds of opposition available to the judgment debtor which he has set out in a properly framed notice of intention to oppose.  There is no dispute that the debt is owing.   In my view the judgment creditor is entitled to the order which it seeks and I therefore make an order adjudicating the judgment debtor bankrupt.  The order  is  timed  at  10.50  a.m.    The  judgment  creditor  will  have  2B  costs  and

disbursements as fixed by the Registrar.

J P Doogue

Associate Judge